May 7, 2008

Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically.

This is the standard conservative criticism of federal judges.

My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits....

Of course, this is right.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable.

He's referring to Justice Stevens's opinion in the lethal injection case, Baze v. Rees. ("I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'") Back to McCain:

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

I'm skipping over his discussion of Kelo and the flag pledge case to shorten this post, but, like the whole speech, it's very well composed. McCain has fine legal advisors (and he will have them when he's picking his judges).

He goes on to a long criticism of the Senate's approach to judicial confirmations. He doesn't say how he can appoint fully conservative judges when he needs the Senate's confirmation. Won't some moderation be required — especially if one of the liberal Justices of the Supreme Court steps down? The answer is obviously yes.

Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

That's all very well put. It makes it clear that picking — and confirming — judges is not about quality and qualifications. There is an ideological element, and it determined Obama's Senate vote. Now, as President, Obama will be nominating the judges — moderated by what the Senate will accept — but his vote on Roberts makes it plain that he won't pick conservative judges.

McCain notes that he voted for Bill Clinton's nominees to the Supreme Court, Stephen Breyer and Ruth Bader Ginsburg. (The text of his speech on his website misspells her name "Ginsberg," making me wonder whether his legal advisors are as good as I'd thought.) He voted based on quality and out of deference to the President's constitutional role, he says. What? Do you worry that he voted out of a secret love for liberal judges? McCain assures us that he will nominate "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference."

To compare what McCain said in this carefully prepared text to what he said to me in the conference call a year ago: He doesn't fall back on the stock phrase "strict construction" — which is a good thing. Like the judges he says he admires, he now talks about being faithful to what the law requires. His judges aren't "strict" (or narrow) but correct, and those other judges are lawlessly ranging beyond the text. That's the better way to present conservative judicial ideology. He certainly didn't say, as he did to me, that he wants conservative judges. He wants judges who adhere to the law and don't legislate. That's the better way to put it, even if it does worry some people who want assurances that he will give them another Scalia or Thomas. And why shouldn't they worry? He didn't name Scalia and Thomas as his model judges. He named Roberts and Alito (and his "friend" Rehnquist). Does that mean he's a notch removed from the most conservative position? (Does it irk Justice Scalia not to be named here, especially when most of this speech reads like a Scalia speech?)

McCain also didn't talk about appointing persons who have experience in the business world. In fact, he avoided talking about the role of the courts with respect to business and commerce.

He also avoided the subject I tried to get him to talk about a year ago: the balance on the Court. We have lived for a long time with a Court balanced with conservatives, liberals, and swing voters. Do we really want what would happen if we lost a liberal Justice (or Justice Kennedy) and the conservatives got a reliable 5th vote? Do we understand what would happen then? But do we think McCain would give that to us – or that the Senate would let him? Frankly, I don't think so.

"Do we really want what would happen if we lost a liberal Justice (or Justice Kennedy) and the conservatives got a reliable 5th vote? Do we understand what would happen then?"

Yes and yes. More importantly, do you "want what would happen if ... the conservatives got a reliable 5th vote," Ann? At least, setting Roe aside, arguendo. Assuming (we have no reason not to) that he's sincere in looking for judicial conservatives in the Rehnquist/Roberts mold, does that make you more comfortable than you might be with candidates who cite Scalia and Thomas as their touchstones?

Yes, I'd rather have McCain appoint two judges during his term, than Obama appoint three or four of them during two terms.

I don't agree that maintaining "balance" on the Court is a worthwhile objective. There should not be a quota of female, Jewish, black, liberal or conservative justices. These quotas would prevent a third female on the court, and would probably prevent an Asian or Hispanic unless there was a two-fer.

The system was designed to allow the President -- with great deference by the Senate, in my opinion -- to reflect the ideological views of the people who elected her or him.

Do we want "balance"? Balance between those who feel constrained to be "faithful to what the law requires" and those who feel free to "range beyond the text" and substitute their judgement for the legislatures?

NO.

And your question about losing a liberal justice and gaining a conservative one is off the point, too, unless you think McCains' new clarity ("He wants judges who adhere to the law and don't legislate") is somehow not the point. "Balance" in terms of different political and cultural positions is what we have Congress with its half a thousand members for, isn't it?

Since the right-wing trollers are always ready to pounce on an Althouse post, it behooves me to add some "balancing" sanity to the comments section. It would be disastrous if even one more Supreme Ct. justice were appointed in the mold of Scalia (or his clones, Simoncito & Scalito); or God forbid another empty-headed dufus like Clarence Thomas were added to the already severely corporatist, reactionary court, thanks to bushbaby's recent appointments. I pine for Harriet Miers.

On the subject of the corporatist court, you can read the fairly recent NY Times article written by, Jeffrey Rosen. It's a sad and sorry commentary on the state of the whole Supreme Ct's corporate-biased thinking. Hopefully, President Obama will begin to fix the present imbalance skewed in favor of rich white folks, who get ALL the umpire calls their way. There, I barely made a dent in balancing, or compensating for, the unconstitutional hate speech so prevalent in this comment's section. We need more intelligent comments by Christopher Althouse Cohen to clear the overhanging miasma around here.

I think the subtitle for Stone's article could be "Attack of the False Premise." Part 2 could use the subhead "Now I Argue by Assertion."

The false premise in the first part of the article lies not only in Stone's definition of judicial activism, but in the pretense that McCain shares that definition and thus can be labeled "ignorant" and "stunningly unaware."

But, of course, McCain's words are not ignorant, he simply speaks from a different premise -- a definition of judicial activism that validates federalist reasoning as constitutional. Notably, this is consistent with most of McCain's politics (with the exception of the execrable campaign finance issue).

Stone might be justified in attacking McCain's "mocking" of lifetime tenure, if McCain had actually done so. Instead McCain points out the obvious -- lifetime tenure makes the selection of judges that much more important: And the only remedy available to any of us is to find, nominate, and confirm better judges. (my emphasis)

Stone's lengthy dive into constitutional history is thus beside the point, as is his continued invective.

The only part of the article that rings true is the byline: Geoffrey R. Stone is ... an adviser to Sen. Barack Obama.

Trumpit said..."On the subject of the corporatist court, you can read the fairly recent NY Times article written by, Jeffrey Rosen. It's a sad and sorry commentary on the state of the whole Supreme Ct's corporate-biased thinking."

It's clear that most of Prof. Althouse's professional colleagues (e.g., Prof. Stone) would love the results if a President Obama got to upset the balance of the Supreme Court by replacing one of the conservative judges with one more liberal. So I'm not sure who is the "we" in Prof. Althouse's last paragraph who so much appreciate the current balance.

Taking everything he said in this speech, plus his preference for a nominee with experience of the "real world" that he described in your blogger call, it sounds like J. Michael Luttig should be high on McCain's list. Assuming, of course, that McCain gets to have a list, and he only does that by winning in Nov.

It's also a commentary that's been completely exploded at least twice.

So it's been exploded by the extremist Posner Jr. (who is just as an extreme nut as his father)

I just love how he criticizes Rosen for making statements without support but then goes on to make this unsupported statement:

"So the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration."

While the financial regulatory atmosphere has certainly loosened in the last thirty years, I hardly think it is a result of a change in public mood, more like extreme lobbying by the financial industry. And certainly the results have been mixed--and may yet turn out to be catastrophic when the current credit/mortgage debacle works itself out.

McCain: "Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them."Such as Bush signing McCain-Feingold. Why is Johnny complaining about this?

McCain's position on BCRA is more defensible than Bush's. McCain believes it comports with the First Amendment. He's wrong, but that's certainly a more defensible position than Bush's breach of his oath of office in signing a law that he believed to be unconstitutional.

McCain is 72 years old. He has NEVER cared about social issues or judges. He led of Gang of 14.

He has NO interest in fighting a Democrat Senate to replace Stevens with an Alito or Roberts. He doesn't even like Scalia and Thomas.

Reagan wanted Bork, and unlike McCain, truly cared about Judges. He couldn't get Bork through. Bush *barely* got Thomas through. And if the everyone had known he'd been Scalia II, he would have been rejected.

Look for McCain to cut a "Gang of 14" compromise. He'll give Biden and his pal -Holy Joe - the "consultation" power they've always wanted.

McCain is 72 years old. He has NEVER cared about social issues or judges. He led of Gang of 14.

You know I have to say that in hindsight, leading the Gang of Fourteen was probably one of the smartest moves that anyone – particularly any Republican – made with regards to judicial nominees in the last several yaers. The fact is that Frist didn’t have the votes to enact the nuclear/constitutional/Byrd/whatever option in the Senate and if he had tried it and failed, it would have only emboldened the Democrats.

If you want to be mad at someone – be made at those Republicans who run on judicial nominees because they know it’s red meat for the base and would rather be able to go back every 2-4-6 years and rail against “activist judges” rather than actually doing something to fix it. The fact is that Republicans could have avoided the showdown entirely by changing the Senate rules at the beginning of the term in 2000, 2002, and 2004 which is the right way to do it.

Instead some of the decided that they’d get more political mileage over staging an unnecessary showdown and we in the base would rally around the flag while losing sight of the fact that some of our elected “leaders” were more interested in having the fight then they were in winning it. And if their bluff had been called and they would have lost?

In that case we’d be talking about Chief Justice Harriet Miers and Associate Justice Alberto Gonzales (if we were lucky).

Instead we stopped the judicial filibuster in a way that saved face, got Chief Justice John Roberts and Associate Justice Samuel Alito confirmed, and lived to fight another day. Why some people insist on demonizing McCain for fighting smartly and effectively and getting us what we wanted in the first place is beyond me.

If there were a balance on the Supreme Court they would be at least four women on it. This of course would be an anathema to the conservative male justices.

McCain rails against judicial activism, but we have a new form of judicial activism on the court right now. Very conservative justices mask their personal and religious viewpoints by stating they are giving strict interpretations of the Constitution. The Constitution was written over 200 years ago. There was no way the founding fathers could have conceived of all the things that would happen the next two centuries. Would somebody please pass me an automatic weapon?

"...leading the Gang of Fourteen was probably one of the smartest moves that anyone – particularly any Republican – made with regards to judicial nominees in the last several yaers. The fact is that Frist didn’t have the votes to enact the nuclear/ constitutional/Byrd/whatever option in the Senate and if he had tried it and failed, it would have only emboldened the Democrats."

How do you know he didn't have the votes? They never voted! Even a loss would have identified who was not supporting conservative judges - and allowed us to take action.

And I have no idea what "emboldening" the Democrats means. IT sounds very vague, and nebulous. The "Gang 14", in fact, lowered the morale of Republicans, so its hard to see how a defeat could have been worse.

"... And if their bluff had been called and they would have lost? In that case we’d be talking about Chief Justice Harriet Miers and Associate Justice Alberto Gonzales (if we were lucky)."

What? I didn't see any connection. Do tell us how the Gang of 14 saved Alioto or Roberts. In any case, its completely unproven that Miers/Gonzales would have been more or less conservative than ROberts/Alioto.

Neil Benson has left a new comment on the post "McCain's judges...."If there were a balance on the Supreme Court they would be at least four women on it."

Only if you assume that by "balance" one means gender balance. And why would we mean that? Why not racial balance - three blacks, two latinos, and four whites? Why not religious balance - four Catholics, four protestants, and a jew? You can't mean political/jurisprudential balance since that already exists (four relatively conservative judges, four relatively liberal judges, and a wishy washy moderate). Why not sexuality balance? Why not balance for any randomly-chosen characteristic susceptible to demographic notice? I suppose the obvious answer is because that's not what courts are there to do.

"This of course would be an anathema to the conservative male justices."

What's your evidence for this? Sounds like mere prejudice to me. The criticism of O'Connor, for example, went to her jurisprudence, not her gender, and who on earth supposes that O'Connor was wishy washy because she was a woman? Hillary Clinton, for example, is aything but wishy washy. I imagine a Diane Sykes (who I like a lot) or a Janice Rogers Brown (who I'm cooler on) would be welcomed with open arms.

"McCain rails against judicial activism, but we have a new form of judicial activism on the court right now. Very conservative justices mask their personal and religious viewpoints by stating they are giving strict interpretations of the Constitution."

Perhaps that's true of Justice Kennedy, although it's hard to see how he's "very conservative," but it's hard to make that citicism stick on the other justices. You don't agree with their decisions, and that's fine; impugning their motives is a poor substitution for explaining where their reasoning goes wrong. There's very little judicial activism on this court by any definition, and the Justices that McCain most praises are the least apt to engage in even the behavior some liberals now want to rebrand as judicial activism. Let's hear some examples, please - and if your first example is Carhart, let me preemptively say that's a very poor example and you can do better.

"The Constitution was written over 200 years ago. There was no way the founding fathers could have conceived of all the things that would happen the next two centuries."

And this is relevant why? The framers need not have anticipated the development of the internet to protect speech conducted through it from government regulation, see Reno v. ACLU, 521 U.S. 844 (1997), or the development of infrared search technologies to protect warrantless searches using the same, see Kyllo v. United States, 533 U.S. 27 (2001). Likewise, as the court will likely find this term, the question isn't whether they foresaw the development of automatic weapons; they protected "arm[aments]" and the question is whether a machine gun is such.

"Would somebody please pass me an automatic weapon? "

This makes me think of an exchange in the movie Ronin where they're picking out weapons.

RCocean, you need to drop this silly vendetta over the Gang of 14. We;ve been through this over and over again. McCain and the Gang of 14 acted to protect the Constitution from a poorly-conceived (fraudulent, in fact) end-run around legitimate legislative process that even Earl Warren would have considered too brazen, one that almost certainly lacked the votes to pass. Even if you believe none of that, first, the blame lies with Frist for not moving to abolish the filibuster in a timely manner at the opening session, and second, the Gang of 14 tells us nothing about McCain's views on what attributes and views are appropriate for a judicial nomination he will submit.

"second, the Gang of 14 tells us nothing about McCain's views on what attributes and views are appropriate for a judicial nomination he will submit."

You cannot be serious. McCain will have to fight to a Democrat Senate to get another Roberts confirmed. Will he fight Ted Kennedy or Joe Liebermann to do so? Of course not. His whole record and his leadership on the gang of 14 says no.

McCain voted FOR Ginsberg and Breyer. He has NEVER led the fight for conservative judges. Unprompted by electoral concerns he has never talked about the need to nominate CONSERVATIVE judges. Of course he voted FOR the Bush, nominees, to do otherwise would mean NO POTUS.

His whole history is reaching across the aisle to help the Democrats pass LIBERAL legislation. He never has gotten the Democrats to join him to help pass Republican legislation. His main concern is Foreign Policy and Defense.

RCocean said..."You cannot be serious. McCain will have to fight to a Democrat Senate to get another Roberts confirmed. Will he fight Ted Kennedy or Joe Liebermann to do so? Of course not. His whole record and his leadership on the gang of 14 says no."

His record with the Gang of 14 is irrelevant both to his views on the kind of judges Presidents should appoint (in that it was a question of Senate procedure and the constitutional limits vel non on those procedures), and to whether he's willing to fight to confirm good nominees (insofar as it signals, at most, that he won't fight with unconstitutional means to confirm judges, which is appropriate).

"McCain voted FOR Ginsberg and Breyer."

He also voted for Bork and Thomas.

The arguments against McCain by so-called conservatives remind me of 2000 when putative liberals announced that there was no difference between Bush and Gore, so liberals might as well vote for Nader.

Just reading that question made me tired. Can people really be that clueless about how Congress works?

You don't hold a vote to find out how people are going to vote, RC. The leadership goes around and gets the individual senators or representatives to commit to voting one way or the other. That's what the Whip does -- muster votes. Then, if either (a) there are enough votes to win or (b) there is a political advantage to losing (e.g. "those evil Democrats voted down the Everything Good and Decent Act of 2008!"), they try to push for an actual vote.

He voted for every Supreme Court nominee that came up for a vote, for that matter. All we can draw from his record is that he defers to the Executive on the subject of judicial appointments (which is what Senators are supposed to do, and for the most part DID do until the Bork incident).

McCain and the Gang of 14 acted to protect the Constitution from a poorly-conceived (fraudulent, in fact) end-run around legitimate legislative process that even Earl Warren would have considered too brazen, one that almost certainly lacked the votes to pass.

My, my Simon, don't we drop the mantle of strict construction/originalism when it suits us. The President picks judges with the advice and consent of the Senate, that's all the Constitution has to say about it. The Senate is free to set its own rules about how they go about it. And the Supreme Court (or any other Federal Court for that matter) does not have a right to intrude on the how the Senate conducts its business.

Simple math. There were 55 Republican Senators and Frist needed at least 50 to enact the nuclear/constitutional/Byrd/whatever option (along with Vice President Cheney to break a tie). There were 7 Republicans who joined the Gang of Fourteen because they didn’t support Frist’s proposed rule change which means that Frist at most would have had 48 votes or 49 if McCain hadn’t been part of the Gang of Fourteen and instead opted to join Frist's march off the cliff.

Even a loss would have identified who was not supporting conservative judges - and allowed us to take action.

Um no, a loss would have showed the Democrats that not only couldn’t Republicans muster the 60 votes needed to break the judicial filibuster but they didn’t have the 51 votes needed for Frist’s back-door attempt to change the rules. In which case they not only would have won that round but they would have had no reason not to stop blocking judicial nominees from coming to a vote.

As far as who does and does not support conservative judges, there’s an easy way to gauge that. Look at who did and did not vote to confirm Chief Justice Roberts and Associate Justice Alito and be sure to thank the members of the Gang of Fourteen who ended the judicial filibuster and made those votes possible.

And I have no idea what "emboldening" the Democrats means. IT sounds very vague, and nebulous. The "Gang 14", in fact, lowered the morale of Republicans, so its hard to see how a defeat could have been worse.

The only Republicans whose “morale” was “lowered” are the ones who care more about fighting an unnecessary battle thinking that they’re “proving a point” then they do about winning. The fact is we got Roberts and Alito and I guarantee you that Republicans are happier about that outcome than Democrats who supported the filibustering of Bush’s judicial nominees.

Um, Freder, your biases are showing. You may want to go back and actually read Simon's comment. He was in fact saying the same thing that you are saying, that the Constitution allows the Senate to set its own rules for how it chooses to advise and consent on judicial nominees. He said quiet clearly that his opinion is that Sen. Frist's "nuclear option" was of dubious constitutionality.

Mind you, I disagree with that position, but it is what Simon has consistently stated on this issue. You might want to understand what he's saying before reflexively disagreeing with him.

Even if you believe none of that, first, the blame lies with Frist for not moving to abolish the filibuster in a timely manner at the opening session,

Exactly! Senate Republicans had three opportunities to enact the rule change legitimately at the beginning of the 2000, 2002 and 2004 sessions – the latter two of which they were on notice that Democrats were trying to block Bush’s judicial nominees.

The only reason to wait until the middle of the session, after the rules had already been adopted, was to stage a public fight hoping to energize the GOP base, or at least those members of the GOP base who are more interested in the pageantry of politics then the results.

I for one don’t want the candidates I support to waste their time – which is ultimately my time – staging political stunts. I elect them because there’s a particular policy agenda I want them to carry out.

McCain found a way to move that agenda forward with the Gang of Fourteen which ended the judicial filibuster and lead to the confirmation of two highly qualified justices to the Supreme Court. Ergo, I am pleased that McCain succeeded in getting seven Democrats (all of whom I believe are still in the Senate) to defect and achieve a result that should be pleasing to conservatives which bodes well IMO for what he might be able accomplish as President.

FTR: I don’t think that it’s unconstitutional for the Senate to try to block – including through the use of a filibuster – a president’s judicial nominees as the Constitution allows both Houses of Congress to set their own rules (I reserve the right to object or not on other grounds but I don’t think it’s unconstitutional).

I also don’t think it’s unconstitutional to try to change the rules in the middle of a session (that’s a matter of parliamentary rules not the Constitution). The reason why I refer to it as the constitutional/nuclear/Byrd/whatever option though is that I believe that there is in fact precedent for the tactic that Frist tried to employ in that Senator Robert Byrd (who was one of the Gang of Fourteen) tried or at least threatened to try to do the very thing Senator Frist tried or threatened to do in an earlier session.

My preference though is to change the rules cleanly at the beginning of the session but I recognize that Frist didn’t come up with the idea by his lonesome, he was trying to do what someone on the other side of the aisle tried to do before. It doesn’t make it right but there are very few players in the Senate who participated in this drama who had clean hands (with the possible exception of McCain).

Thorley:"FTR: I don’t think that it’s unconstitutional for the Senate to try to block – including through the use of a filibuster – a president’s judicial nominees as the Constitution allows both Houses of Congress to set their own rules (I reserve the right to object or not on other grounds but I don’t think it’s unconstitutional)."

Absolutely. That's what I said at the time and (as Pat mentions above) it's what I've consistentlysaidsince, up to and including in this thread, in my 10:58 PM comment. The problem that Frist (and all supporters of the nuclear option) confront is that the Constitution expressly grants Congress power to set its own rules, the Senate has adopted rules acting pursuant to that power, those rules provide a process for their own amendment, and Frist didn't have the votes to invoke that process. He needed an end-run; the only way he could possibly do it after failing to prevent the rules from being adopted for that Congress was by invoking an authority superior to the rules, and the only possible authority to which he could look was the Constitution. Since there's nothing in the Constitution that would trump Senate rules (in fact, the Constitution expressly repudiates the idea), they were left to cook up this crazy notion that simple majority voting was implicit in Article II, even though it was not in Articles I, III and IV.

Whatever else the filibuster may be, it is not unconstitutional. There's nothing in the text or original understanding, and only a will-o-the-wisp in history and tradition, that supports the idea that it is so - the nuclear option was and remains cut from whole cloth with raw political expediency, in my view.

The Constitution is irrelevant to my point. Obviously Senators have the Constitutional power to block Presidential appointments; that much is unquestionable. But there is a wide gulf between what the Constitution will allow and what the Founders intended -- the Legislative, Executive, and Judicial branches can abuse their powers outrageously without ever actually doing anything unconstitutional. For example, the Supreme Court could, if it wished, throw out every conviction of a white man lynching a black man. That is within its power. It is not, however, the way the Supreme Court is supposed to behave.

Similarly, while the advise and consent power CAN be used to reject any candidate who rules "the wrong way" on politically sensitive issues, that is an abuse of the power. It was meant to screen out unqualified and corrupt nominees -- not to pack the court with judges who rule the way the Legislative branch wants them to.

It seems like it would have been smarter for the Republicans to push for filibusters of judicial nominees to be actual filibusters -- i.e., require that the people who insist on continuing the debate actually talk. The problem with modern filibusters is that they have no cost to the person behind them; all he has to do is state that he wishes to continue the debate. He never actually has to do so.

Revenant said..."[T]here is a wide gulf between what the Constitution will allow and what the Founders intended -- the Legislative, Executive, and Judicial branches can abuse their powers outrageously without ever actually doing anything unconstitutional."

Yep, and that's an important distinction to make. It's nice to know the original intentions of the framers, and for conservatives, those intentions have persuasive value, as part of the longstanding line of American tradition that gives form and content to the Constitution. I've referred to this a principle of exoconstitutionalism - the idea that the understandings, traditions and practices that have accreted and calcified around the Constitution's text should be given great weight and deference, almost (but not quite) to the point of being treated as commands of the Constitution itself. Nevertheless, the original intent is not law. It is what was actually enacted - the original meaning of the text - that is binding on us.